Constitutional attorney John W. Whitehead is president of The Rutherford Institute

Terror Tuesdays, Kill Lists and Drones: Has the President Become a Law Unto Himself?

Now, once again, we find ourselves skating dangerously close to becoming a nation ruled not by laws but by men -- and fallible, imperfect men, at that. Yet this latest crisis did not happen overnight.

06/20/2012 03:26 pm ETUpdated
Aug 20, 2012

What lies at the nexus of Obama's targeted drone killings, his self-serving leaks, and his aggressive prosecution of whistleblowers is a president who believes himself above the law, and seems convinced that he alone has a preternatural ability to determine right from wrong.

-- Peter Van Buren a 24-year veteran Foreign Service Officer at the State Department.

Since the early days of our republic, we have operated under the principle that no one is above the law. As Thomas Paine observed in Common Sense, "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." Several years later, John Adams, seeking to reinforce this important principle, declared in the Massachusetts Constitution that they were seeking to establish "a government of laws and not of men."

The history of our nation over the past 200 years has been the history of a people engaged in a constant struggle to maintain that tenuous balance between the rule of law -- in our case, the United States Constitution -- and the government leaders entrusted with protecting it, upholding it and abiding by it. At various junctures, when that necessary balance has been thrown off by overreaching government bodies or overly ambitious individuals, we have found ourselves faced with a crisis of constitutional proportions. Each time, we have taken the painful steps needed to restore our constitutional equilibrium.

Now, once again, we find ourselves skating dangerously close to becoming a nation ruled not by laws but by men -- and fallible, imperfect men, at that. Yet this latest crisis did not happen overnight. Its seeds were sown in the wake of the 9/11 terror attacks, when fear-addled Americans started selling their freedoms cheaply, bit by bit, for phantom promises of security. From torture at CIA black site prisons and Abu Ghraib abuses to extraordinary renditions, from TSA body scanners and warrantless wiretaps to the PATRIOT Act, Americans have failed to be outraged by the government's repeated violations of the rule of law. In this way, as the "war on terror" has unfolded beyond our wildest imaginings -- from the barbaric treatment of foreign detainees at American-run prisons to the technological arsenal being used by the U.S. government to monitor and control its citizens -- our rights have taken a meteoric nosedive in inverse proportion to the government's rapidly expanding powers.

The New York Times' recent revelation that President Obama, operating off a government "kill list," has been personally directing who should be targeted for death by military drones (unmanned aerial assault vehicles) merely pushes us that much closer to that precipitous drop-off to authoritarianism. Should we fail to recognize and rectify the danger in allowing a single individual to declare himself the exception to the rule of law and assume the role of judge, jury, and executioner, we will have no one else to blame when we plunge once and for all into the abyss that is tyranny.

Declaring Obama's actions "without precedent in presidential history," the New York Times describes a process whereby every few weeks, Obama and approximately a hundred members of his national security team gather for their "Terror Tuesday" meetings in which they hand pick the next so-called national security "threat" to die by way of the American military/CIA drone program. Obama signs off personally on about a third of the drone strikes: all of the ones in Yemen and Somalia, and the risky ones in Pakistan. ("" target="_hplink">According to the Daily Beast, by the time he was awarded the Nobel Peace Prize in 2009, "Obama had given the go-ahead to more drone strikes than Bush did during his entire presidency." By the third year of his presidency, two times as many suspected terrorists had been approved for killing than had been put in Guantanamo Bay during George W. Bush's presidency.)

These "Terror Tuesday" sessions run counter to every constitutional and moral principle that has guided America since its inception. It's not only suspected terrorists whose death warrants are being personally signed by the president but innocent civilians geographically situated near a strike zone, as well, whether or not they have any ties to a suspected terrorist. As an anonymous government official on Obama's drone campaign observed, "They count the corpses and they're not really sure who they are." Indeed, Obama's first authorized drone attack in Yemen led to the deaths of 14 women and 21 children, and only one al Qaeda affiliate. Incredibly, the government actually justifies these civilian deaths by suggesting that the individuals must be "militants" or "combatants" simply because of their proximity to the target.

The ramifications are far-reaching, especially now that Obama has authorized the use of drones domestically. In keeping with this logic, the U.S. government could target a house full of fraternity brothers so long as they thought a terrorist was somewhere inside.

Whatever one may say about the dubious merits of Obama's kill list, there can be no doubt about the fact that he has managed to create a radical and chilling new power allowing the president to kill at will anyone, including American citizens, whom he deems a threat to the nation's security. Entirely lacking in accountability and legal justification, Obama's kill list takes to new heights Richard Nixon's brazen claim that "if the president does it, it's not illegal."

No matter what is said to the contrary, the Constitution does not in any way provide for the president to engage in such acts, even under the auspices of his role as Commander in Chief. In fact, the Fifth and Fourteenth Amendment's guarantees of due process, intended to protect citizens in the event that the government attempts to overreach its authority, assure every American citizen that before the government can imprison them or put them to death, they have a right to hear the charges being levied against them, review the evidence, and be treated to a fair and impartial trial by a judge or jury.

Thus, perhaps hoping to distract and divert the public's attention from the core issue at hand -- namely, the fact that the president has become a law unto himself -- the Obama administration has launched an investigation to discover who leaked the information about the kill list. The media, in typical fashion, have taken the bait. However, no amount of obfuscation can alter the fact that Obama, by his actions, is circumventing the Constitution, especially as it pertains to the rights of American citizens. Indeed, in a decision he claims was "an easy one," Obama has already killed two American citizens in this fashion: Anwar al-Awlaki, an American cleric living in Yemen who served as a propagandist for al Qaeda, and his 16-year-old son.

That Obama, schooled in the law and having himself taught constitutional law, can so glibly disregard the Constitution's requirement of due process for American citizens is particularly troubling. Therein lies the danger of Obama, one overlooked by his supporters in their zeal to retain the White House and greatly underestimated by his opponents.

Unlike his predecessor George W. Bush, who was unabashed about his ignorance of the Constitution and unapologetic about his push for war, Obama presents himself as a reasoned, knowledgeable man who struggles mightily with the moral dilemmas presented to him by his job. Yet appearances and statements to the contrary, Obama's record shows him to be far worse than Bush when it comes to respecting human life, civil liberties and the rule of law. As Steven Rosenfeld reports for Salon:

When Barack Obama took office, he was the civil liberties communities' great hope. Obama, a former constitutional law professor, pledged to shutter the military prison at Guantanamo Bay, Cuba, and run a transparent and open government. But he has become a civil libertarian's nightmare: a supposedly liberal president who instead has expanded and fortified many of the Bush administration's worst policies, lending bipartisan support for a more intrusive and authoritarian federal government... President Obama now has power that Bush never had.

When all is said and done, Obama's kill lists and drone strikes, which have claimed the lives of countless innocent women and children, are doing little more than fomenting ill will against the United States. Whether he intends it or not, by his actions, Obama is sowing the seeds for future terrorist violence against America -- blowback for our callous disregard for life. As Ibrahim Mothana, a Yemeni democracy activist, noted in an op-ed in the New York Times, "Drone strikes are causing more and more Yemenis to hate America and join radical militants; they are not driven by ideology but rather by a sense of revenge and despair."

With every passing day, the casualties are mounting -- not just the innocent women and children abroad blown to smithereens by American missiles, but our Constitution, our increasingly fragile republic and our ability to trust that our government leaders will be accountable to abiding by the rule of law.